Our View: No such thing as ‘game over’ on ObamaCare

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Journal Star

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Posted Jul. 23, 2014 at 9:45 PM
Updated Jul 23, 2014 at 9:46 PM

Posted Jul. 23, 2014 at 9:45 PM
Updated Jul 23, 2014 at 9:46 PM

If anyone needed further proof that this nation is schizophrenic regarding ObamaCare, they got it Tuesday with two wholly incompatible decisions from federal courts regarding the dispensation of subsidies under the law to help Americans afford health insurance.

The three-member District of Columbia Court of Appeals ruled 2-1 in Halbig v. Burwell that in the 36 states not operating their own health care marketplaces — opting to let Uncle Sam run the show instead — the low- and moderate-income people receiving public assistance are not eligible for it given the exact language of the Affordable Care Act. Fundamentally, the Internal Revenue Service, which authored the de facto rules here, is not permitted to write law. That’s Congress’ job. Meanwhile, the Fourth Circuit Court of Appeals in Richmond, Va. ruled unanimously in a separate lawsuit, King v. Burwell, that such an interpretation was nonsense, that in the context of the ACA “as a whole,” the subsidies were “permissible and reasonable.”

While this question is far from settled, with multiple lawsuits in play and each side contemplating its next move — nothing changes for the time being — should the D.C. court’s view prevail, it could jeopardize health care coverage for some 4.7 million Americans who may no longer be able to afford the premiums (the average subsidy is about $4,400 per person). As a result, ObamaCare could collapse, given its fiscal dependence on as full a participation as possible.

The reaction was swift from both sides of the ideological divide, with supporters of the law, mostly Democrats, particularly upset. “You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” said White House Press Secretary Josh Earnest.

That may be, but that’s not what Congress wrote. Indeed, in unambiguous language, the ACA text reads that subsidies would be available only through “an Exchange established by the State.” Why did Democrats and the Obama administration do it that way? Because they gambled that governors and legislatures, even Republican ones — as is the case in most of those three dozen states — would take the bait, that they would not, when it came right down to it, take a pass on help for many of their most vulnerable citizens. Well, they wagered wrong. In effect, they gave those red states — most of the country — veto power over federal legislation that may soon become health care reform for blue states only.

We are of very mixed emotions on this matter.

On the one hand, words matter. We unapologetically endorse the rule of law, which ought to mean what it says. As such it’s difficult to find fault with the D.C. court’s reasoning. Beyond that, this is further evidence that however laudable the goal of insuring more Americans, this effort was incompetently conceived and managed since. Oh how the comment of Nancy Pelosi, Democratic House Speaker at the time of the bill’s passage — “We have to pass the bill so that you can find out what is in it ...” — has come back to haunt her.

Page 2 of 2 - On the other hand, though we too have had our differences with ObamaCare, what has always struck us with dismay and frankly disappointment is just how desperately its detractors want it to fail, and how they greet each setback with barely contained glee. There is a moral component to that, an absence of compassion that is troubling. Opponents would gladly saddle millions of Americans without health care coverage — which can be a matter of life or death for some — just to hand a president with whom they have ideological differences a loss? Really?

Meanwhile, we’re somewhat taken aback by the comments of one of the plaintiffs in the D.C. lawsuit who noted that he shouldn’t be obligated to pay for health insurance because, “as Americans, we should be able to make our own decisions in matters like this.” And that’s fine, if he’ll just sign his name to a legally binding agreement not to seek medical attention that he cannot afford, should he ever need it. Last time we checked, those of us, “as Americans,” who get stuck with the bill the hospital passes along after treating people without health insurance don’t have much of a choice in the matter, either.

The White House could seek a rewrite of the law from Congress, but fat chance there, as of course that would be doomed in the Republican-controlled House. More likely the Obama administration will pursue review before the full appellate court in the D.C. Circuit, which has seven Democrat appointees and four Republican appointees among its 11 judges. They probably have a better shot there.

Otherwise the U.S. Supreme Court will have to weigh in again, If past is prologue, well, that may be a crapshoot. And here you thought it was “game over” with the Supreme Court’s 2012 decision on the ACA’s constitutionality. No such thing.